Study On Judicial Application Of Fair Sharing Of Loss Rules

The fair share of loss rules refers to the damage caused by the victim because the victim is not at fault and exhausts other remedies and cannot be compensated.The judge can comprehensively consider the facts of the case and the economic situation of both parties and decide the act.The rules for sharing the direct property damage of the victim.It is mainly stipulated in Article 132 of the General Principles of Civil Law and Article 24 of the Tort Liability Law.The fair share of loss rules is different from the tort law's principle of liability.It is a "special rule" established under the existing national conditions in which China's social relief system is still not perfect.It is essentially a loss distribution system.Since the establishment of the fair share of loss rules,that is,it has been applied for a long time in judicial practice,the study of its judicial application status is conducive to highlighting its institutional value and helping to improve the judicial application effect.It is also a useful exploration of legislative design.In this paper,100 sample judgments were collected as the data basis in the "China Judgment Paper Network".After examining the applicable conditions,applicable conditions and the status quo of the instrument theory,it was found that the applicability of the fair share of loss rules in judicial practice is high,but its Strict review and prudent applicability are not strong,and some generalization and randomization will inevitably lead to abuse of risk.Mainly reflected in: confusion of applicable conditions,confusion of application,confusion of imputation,confusion of legal attributes,confusion of loss,confusion of responsibility distribution,and confusion of provisions.The reason for its abuse mainly comes down to the ambiguity of the law,the excessive discretion of the judges,and the excessive consideration of social effects in the judgment of judges.In order to solve the problem of fair share of the loss of rules,we should improve and limit its judicial application.First of all,we must clarify the principle of judicial application of fair share of losses.There are two ways: First,the legalization of the applicable situation,that is,the infringement responsibility of the Civil Code.On the basis of Article 962 of the draft,the application of the enumeration rules or the improvement of the supporting legal provisions shall be clearly applied.Second,the applicable conditions shall be legalized,that is,“the losses can be shared by both parties according to the actual situation” and “the following conditions are met,The loss can be shared by both parties,and the specific conditions of application are listed below.The applicable conditions for the fair share of loss rules include: the actor and the victim are not at fault for the occurrence of the damage,the de facto connection between the actor and the damage,the victim's exhaustion of other means and the inability to obtain relief,and the victim's loss is enormous bear.The application of the fair share of loss rules includes: the loss of the full capacity of the person who is temporarily unconscious or loses control,the damage caused by the emergency hedging person,the damage caused by the competitive sport,the accident caused by the object,and other accidents.The limitation of the judge's discretion is mainly to narrow the scope of the judge's discretion,to get rid of the judicial misunderstanding and to balance the legal effect and social effect.The improvement of the social relief system also helps to limit the application of the fair share of the loss rules,to improve the social security system,the commercial insurance system,and to strengthen the social self-reliance.In the application of judicial practice,when accidental damage occurs,firstly,commercial insurance will be used.If there is no relevant commercial insurance,the loss will be filled through social security;if commercial insurance and social security cannot receive relief,consider adopting legal channels.The rules for fair share of losses shall be applied;the rules for fair share of losses shall be applied cautiously.Regardless of the applicable circumstances or the applicable conditions,the arguments shall be strengthened to balance the interests and ultimately achieve substantive fairness and justice.